Fill and Sign the Federal Death Penalty System Department of Justice Form

76.4 Controlled Substances (Death Penalty - Supplemental Instructions) Substantive Instruction As I told you before, you now must consider whether to recommend a sentence of death for the Defendant. During your deliberations you must consider whether any aggravating factors are present. You must unanimously agree in order to find that an aggravating f actor exists. The law provides a list of aggravating factors you may consider. The Government has the burden of proving aggravating factors, and it must prove them beyond a reasonable doubt. A "reasonable doubt " is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. The fundamental aggravating factor the Government alleges in this case is that the Defendant - - [intentionally killed the victim; or] [intentionally inflicted serious bodily injury which resulted in the death or the victim; or] [intentionally engaged in conduct intending that the victim be killed or that lethal force be employed against the victim, which resulted in the death of the victim; or] [intentionally engaged in conduct which - - (i) the Defendant knew would create a grave risk of death to a person other than one of the participants in the offense; and (ii) which resulted in the death of the victim.] If the Government does not satisfy each of you beyond a reasonable doubt that this fundamental aggravating factor exists, then you should return a finding to that effect, and cease further deliberations. If you unanimously find beyond a reasonable doubt that the fundamental aggravating factor does exist, then you should determine whether the Government has proved beyond a reasonable doubt that one or more of the following aggravating factors also exist s: [Choose applicable factors charged in the indictment] (1) The Defendant has previously been convicted of either a Federal offense or a State offense resulting in the death of a person, for which a sentence of life imprisonment or a sentence of death was authorized by statute. (2) The Defendant has previously been convict ed of two or more State or Federal offenses punishable by a term of imprisonment of more than one year, committed on different occasions, involving the infliction of serious bodily injury upon another person. (3) The Defendant has previously been convicted of two or more State or Federal offenses punishable by a term of more than one year, committed on different occasions, involving the distribution of a controlled substance. (4) In the commission of the offense or in escaping apprehension for commission of the offense, the Defendant knowingly created a grave risk of death to one or more persons in addition to the victims of the offense. (5) The Defendant procured the commission of the offense by payment, or promise of payment, of anything of monetary value. (6) The Defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of monetary value. (7) The Defendant committed the offense after substantial planning and premeditation. (8) The victim was particularly vulnerable due to old age, youth, or infirmity. (9) The Defendant had previously been convicted of violating [21 USC § 801 et seq.] or [21 USC § 951 et seq.] for which a sentence of five or more years may be imposed or had previously been convicted of engaging in a continuing criminal enterprise. (10) The violation of this title in relation to which the conduct described in subsection (e) occurred was a violation of 21 USC § 859, which prohibits distribution of a controlled substance to anyone under twenty-one years of age. (11) The Defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim. If you do not unanimously find beyond a reasonable doubt that at least one of these additional aggravating factors exists, then you should return a finding to that effect, and no further deliberations will be necessary regardless of whether any mitigating factors exist. [If you find the fundamental aggravating factor present, and you find one or more of the above aggravating f act ors present, you may also find one or more of the following aggravating factors was present: [insert special factors, if any, of which the prosecution gave Defendant notice under 21 USC § 84 8(k)]. ] You should confine your deliberations to the aggravating factors I have outlined above. If you find any aggravating factors to exist, you should note your finding in the appropriate place on the Verdict Form. In addition to aggravating factors, you must also consider any mitigating factors that are present. The finding that mitigating factors are present does not require unanimous or even majority agreement. Any one of you may find, by a preponderance of the evidence, that a mitigating factor or factors exist. " Preponderance of the evidence" simply means an amount of evidence which is enough to persuade you that a mitigating factor is more likely present than not. Mitigating factors for you to consider include the following: (1) The Defendant' s capacity to appreciate the wrongfulness of the Defendant' s conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge. (2) The Defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge. (3) The Defendant is punishable as a principal in the offense, which was committed by another, but the Defendant' s participation was relatively minor, regardless of whether such minor participation would constitute a defense to the charge. (4) The Defendant could not reasonably have foreseen that the Defendant' s conduct in the course of the commission of murder, or other offense resulting in death for which the Defendant was convict ed, would cause, or would create a grave risk of causing, death to any person. (5) The Defendant was youthful, even though the Defendant was over the age of eighteen. (6) The Defendant did not have a significant prior criminal record. (7) The Defendant committed the offense under severe mental or emotional disturbance. (8) Another Defendant or Defendants, equally culpable in the crime, will not be punished by death. (9) The victim consented to the criminal conduct that resulted in the victim's death. (10) That other factors in the Defendant' s background or character mitigate against imposition of the death sentence. There is a space provided on the Verdict Form to enter which of the mitigating factors you find present. You may write them on the form, but you are not required to. If, after weighing the aggravating and mitigating factors, you determine that the aggravating factors found to exist sufficiently out weigh the mitigating factors; or, in the absence of mitigating factors, if you find that the aggravating factors alone are sufficient, you may exercise your option to recommend that a sentence of death be imposed rather than some lesser sentence. Regardless of your findings with respect to aggravating and mitigating factors, however, you are never required to recommend a sentence of death. If you do decide to recommend a sentence of death, you must do so unanimously, and all twelve of you must sign the Recommendation Form to that effect. If you do decide to recommend a sentence of death, the Court is required t o impose that sentence. In reaching your findings concerning aggravating and mitigating factors in this case, the instructions I gave you prior to your deliberations in the guilt phase of the trial regarding determination of credibility issues apply equally here. In other words, you alone determine the credibility of the witnesses and the weight to give to their testimony and to the other evidence. Also, in determining whether to recommend a sentence of death, you must avoid any influence of passion or prejudice. Your deliberation and verdict should be based upon the evidence you have seen and heard and the law on which I have instructed you. While it is your duty to follow the instruct ions of the Court, any statement, question, ruling, remark, or other expression that I have made at any time during this trial, during the guilt phase or during the sentencing phase, should not be considered by you as an indication of any opinion I might have on the sentence that should be imposed. In deciding what recommendation t o make, do not be concerned about what sentence the Defendant might receive if you do not recommend a sentence of death. That is a matter for me to decide in the event you conclude that a sentence of death should not be recommended. In considering whether or not to recommend a sentence of death, you shall not consider the race, color, religious beliefs, national origin, or sex of the Defendant or the victim, and you should not recommend a sentence of death unless you conclude t hat you would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the Defendant, or the victim, may be. The verdict form will contain a certification to this effect which each of you must sign. The process of weighing aggravating and mitigating factors to determine the proper punishment is not a mechanical process. The law contemplates that different f actors may be given different weights or values by different jurors. In your decision making process, you, and you alone, are to decide what weight is to be given to a particular factor. Your only interest is to seek the truth from the evidence and to determine in the light of that evidence and the Court' s inst ructions whether to recommend a sentence of death. If you do not recommend a sentence of death, the Court is required by law to impose a sentence other than death, which sentence is to be determined by the Court alone. Let me admonish you again, while you may recommend a sentence of death, you are not required to do so. The first thing you should do is elect a foreperson who may be the same one that served you during the guilt phase, or it may be someone else. He or she will preside over your deliberations and will speak for you here in Court. A verdict form has been prepared for you. [Explain Verdict Form] When you have reached your decision, the foreperson will fill in the verdict form, and each of you will sign it. If you should desire to communicate with me at anytime, please write down your message or question and pass the note to the Marshal who will bring it to my attention. I will then respond as promptly as possible, either in writing or by having you returned to the court room so that I can address you orally. I caution you, how ever, with regard to any message or question you might send, that you should not tell me your numerical division at the time. ANNOTATIONS AND COMMENTS 21 USC § 848(e) et seq. Thoroughly analyzed and held Constit utional. U. S. v. Chandler, 996 F.2d 1073 (11th Cir. 1993), cert. denied, U.S., 114 S.Ct. 2724 (1994). Jury may find aggravating factors other than those listed in statute only if it finds one aggravating factor listed in 21 USC §84 8(n)(1) and one or more aggravating factors listed in (n)(2)-(12). 21 USC § 84 8(k). Use of deadly weapon in a murder may be used as a nonstatutory aggravating factor; use of duplicative aggravating factors is error. U. S. v. M cCullah, F.3d, 1996 WL 44147 (10th Cir. 1996).